Council of Europe Conference on the Right to a Clean,

Healthy and Sustainable Environment in Practice

Palais de l’Europe, Wednesday 3 May 2023

Robert Spano – Keynote Speech

I.

It is my great pleasure and honour to deliver the keynote speech at today’s Council of Europe conference organised by the Icelandic Presidency of the Committee of Ministers. The right to a clean, healthy and sustainable environment is extremely topical both at the level of the Council of Europe and, of course, globally.

My goal in this keynote presentation is to reflect on the recommendation of the Parliamentary Assembly of the Council of Europe, set forth in Resolution 2396 of 29 September 2021, and formally adopted in Recommendation 2211 of the same day, for the Committee of Ministers to ‘draw up an additional protocol to the European Convention on Human Rights … on the right to a safe, clean, healthy and sustainable environment’. I will be guided in my analysis by the proposed text of an additional protocol appended to Recommendation 2211, although as I understand it the adjective ‘safe’ has now been omitted from further consideration. Moreover, I will examine the reaction by the Committee of Ministers as it finds its expression in the CM’s Recommendation 2022(20) of 27 September 2022 on human rights and the protection of the environment.

It is clear that the catalyst for the PACE Recommendation of 2021 was what is sometimes termed the ‘triple planetary crisis’, climate change, the speed and extent of environmental degradation and rapid loss of biodiversity. There is a wish now in the community of member States of the Council of Europe to discuss the creation of a more robust normative framework within the Convention system for the adjudication of environmental-related human rights claims which have as their origins the fight to induce politicians to take a more proactive role in protecting the environment and fighting climate change. Whilst it is clear that the right to a clean, healthy and sustainable environment is not limited to impacts of climate change, but reaches further towards an ecocentric approach to the protection of the environment, I will, in this speech, so as to contribute to this debate, focus on whether an additional protocol to the Convention is the right approach to take when it comes to environment-protective human rights claims, including in the field of climate change. Here, I have of course in mind that my old court, the European Court of Human Rights, is now having to deal with this issue in a series of climate change related cases within the parameters of existing Convention rights.

The climate crisis is one of the most, if not the most pressing, concerns of our times. It is safe to say that I do not have the expertise nor the experience to opine on all of the myriad scientific, economic and policy-based questions that arise in relation to this issue. However, having been a Judge and President of the Strasbourg Court, I will offer my views on what should, if any, be the role of courts in this space, and in particular, the Strasbourg Court. Is it wise, and based on sound considerations of policy, to amend the Convention with a new protocol on the right to a clean, healthy and sustainable environment and place the development of this right within the adjudicatory model of human rights enforcement provided for by the Convention and the European Court of Human Rights? That is the salient question that I wish to address here today.

I will divide my presentation as follows. First, I will briefly discuss the development of climate change as a human rights issue. This involves the development of the right to a clean, healthy and sustainable environment, the subject matter of today’s conference. In this part, I will also briefly discuss the scope and content of the right to a safe, clean and healthy environment contains, both substantively and procedurally, as it is set forth in the PACE Recommendation. Second, I will explain why, in its current form, the European Convention on Human Rights is not well-suited to address human rights claims resulting from climate change. In conclusion, I will propose a way forward for the Council of Europe to ensure that it is well-equipped to face the most important challenge of our generation.

II.

I begin with a synopsis of the history of a rights-based approach to climate change culminating in the formation of the concept of the right to a safe, clean, healthy and sustainable environment. The European Convention on Human Rights was signed in 1950. The word “environment” is not mentioned in the Convention. That is because, until recently, human rights law and environmental law have largely developed along separate tracks. It is only relatively recently that climate change has been recognised as a rights-based issue.

Some say the earliest milestone of the convergence between the environment and human rights was the 1972 Stockholm Conference. During that conference, it was proclaimed that the environment is “essential to [man’s] well-being and to the enjoyment of basic human rights - even the right to life itself.” Some 30 years later, in 2012, John Knox was appointed the first UN Human Rights Council rapporteur on human rights and the environment. He made the case for what he referred to as the “greening” of human rights. Shortly after, in 2014, 27 UN special rapporteurs and independent experts issued a joint letter concluding that “there can no longer be any doubt that climate change interferes with the enjoyment of human rights recognised and protected by international law.”

All of this culminated in two significant developments at international level.

First, as I mentioned at the outset, on 29 September 2021, the Council of Europe passed a Resolution recommending to “build and consolidate a legal framework – domestically and at European level – to anchor the right to a safe, clean, healthy and sustainable environment, based on the UN guidance on this matter”. The resulting Recommendation was for the Committee of Ministers to “draw up an additional protocol” on the right to a safe, clean, healthy and sustainable environment. It included a draft protocol in annex, which I will discuss in a moment.

Second, on 26 July 2022, the UN General Assembly passed a Resolution recognising a human right to clean, healthy and sustainable environment. Subsequently, the Committee of Ministers of the Council of Europe adopted its Recommendation 2022(20) of 27 September 2022 on human rights and the protection of the environment. Interestingly, the PACE’s invitation for the CM to draw up an additional protocol to the Convention was not taken up in the 2022 CM Recommendation. The CM rather focussed, using quite nuanced and soft language, on limiting itself to recommending to the Governments of the member States to ‘reflect on the nature, content and implications of the right [to a healthy environment]’.

The right to a safe, clean and healthy environment, or variations of this right, is now recognised by a majority of UN Member States, in fact over 150 of 193 States as of 2022 with Italy incorporating such a right into its Constitution in the beginning of last year. This includes over 30 Council of Europe Member States. It has also been incorporated into regional human rights instruments such as the African Charter on Human and People’s Rights (Article 24), and in the Additional Protocol to the Inter-American Convention on Human Rights (Article 11).

So what is the right to a clean, healthy and sustainable environment? It is not easy to give an exhaustive reply to this question as it may be relative to the textual formulation of the right one is examining. However, for present purposes, I will draw on the text as proposed in the COE Recommendation of 2021. There, the right has both substantive and procedural components. Substantively, it will impose on states an obligation to provide a safe climate, clean air, access to clean water and adequate sanitation, healthy and sustainably produced food, non-toxic environments in which to live, work, study and play, and healthy biodiversity and ecosystems. It also arguably imposes on states an obligation to mitigate climate change by regulating greenhouse gas emissions. Procedurally, it involves access to information, public participation in a decision-making process, and access to justice and effective remedies. The proposed right is further described as being “of present and future generations”.

It is clear that the right to a safe, clean and healthy environment breaks from the anthropocentric and utilitarian approach to the environment. Currently, it can be said that the environment is protected insofar as it interferes with the intermediate enjoyment of other human rights, what I will term here the indirect protection thesis. The new proposed right is however not only anthropocentric, but also ecocentric, what can be termed the direct protection thesis. Indeed, the two elements would be considered inextricable under the proposed right. As is explained in the PACE Resolution of 29 September 2021, the proposal thus proceeds on the basis that the right is to be interpreted not only in its anthropocentric (subjective) dimension, recognising that nature undeniably has a utility for humans, but also in its ecocentric (objective) dimension, recognising the intrinsic value of nature and ecosystems.

As a matter of policy and my own sense of justice and morality, I have no doubts that it is justified for the international community to robustly debate the need for adopting a normatively binding right to a healthy environment. The times we live in require it, indeed make it imperative. However, when one views the textual formulation and the scope of application of the right to a healthy environment, as laid down in PACE’s Recommendation, the salient question that arises is this: To what extent is it sound policy to incorporate this right into the European Convention on Human Rights as an additional protocol thus triggering the disputes resolution mechanism under the European Court of Human Rights? Is it realistic that the right to a healthy environment can be properly developed by the Court considering that an additional protocol will not live in isolation within the Convention system, but will have to be adapted and developed in light of other fundamental interpretive principles of the Convention system, as well as to conform to procedural requirements for the sound administration of justice in an adversarial system of law.

Before attempting an answer to that question, allow me first to turn to my second part, namely an explication of the current state of the law under the Convention when it comes to environmental rights disputes and in particular claims made as regards human rights impacts resulting from the climate crisis.

III.

The Convention currently does not include a self-standing right to a safe, clean and healthy environment. It is moreover clear from existing case-law that the Convention cannot be interpreted to protect the right to a healthy environment in its ecocentric (objective) dimension wholly divorced from its utilitarian and anthropocentric (subjective) dimension. In other words, as things stand, the environment plays an ancillary role under the Convention and can only be brought into the adjudicative equation to the extent that environmental harms have direct impacts on the exercise of Convention rights. In short, it seems that within the framework of the Convention as it stands, there is limited scope for the Court to be meaningfully involved in protecting the right to a healthy environment as it is understood under the draft protocol. This is especially so if the Court is expected to impose positive mitigation obligations on Member States. However, this does not mean that the Convention is agnostic to environmental harms and nuisance. On the contrary, there is ample case-law on such issues where the Court has made meaningful strides in interpreting the Convention guarantees to include protections against environmental hazards and pollution.

However, the question the Court is currently confronted with is whether the Convention can also be interpreted to protect against the dangers that climate change poses to classical first generation human rights, such as the right to life enshrined in Article 2 of the Convention, or the right to private and family life in Article 8? These are the challenges currently facing the European Court of Human Rights in three cases on its Grand Chamber docket, two of which are currently being deliberated after hearings on 29 March last and another which will be heard on 27 September this year.

In the pending climate change cases, the applicants essentially argue that that member States have violated their Convention rights by not implementing effective mitigation measures to address the climate crisis. In doing so, applicants and third party interveners have correctly argued that the Strasbourg Court has a tradition of looking to other sources of international law when interpreting the Convention. On this basis they argue that the Court should interpret the Convention in light of principles of international environmental law, including the non-binding commitments of the Paris Agreement. Pursuant to the Paris Agreement, States resolved to  hold the increase in the global average temperature to well below 2°C above pre-industrial levels. Indeed, some argue that there is now a consensus under international law that States have a legal obligation to limit emissions to not to exceed the 2% maximum temperature increase. The drafters of the Oslo Principles, which espouses this view, have described the legal basis for this obligation as being a “network of intersecting sources” which are “local, national, regional and international”. For example, reference is made to the Human Rights Committee, which is the monitoring body for the ICCPR, and which has found that climate change is a serious threat to the right to life. Furthermore, the Committee of Social, Cultural and Economic Rights has stated that States have an obligation to prevent foreseeable human rights harm caused by climate change. It further stated that not doing so would be a breach of the state’s duty to promote human rights for all, on a non-discriminatory basis.

These arguments are of course enticing. In the face of perceived procrastination by national and international political processes in addressing climate change, some naturally crave judicial intervention. This is a challenge, especially as the Convention does not specifically provide for the right to a clean, safe and healthy environment. To mitigate that lacunae, the Court is invited to apply a broad and purposive interpretation to the existing rights enshrined in the Convention and to the norms that the Court has developed in applying these rights.

However, there are several issues that come with interpreting the Convention in a way that imposes positive substantive obligations on a Member State. First, when it comes climate change, its nature and its cross-border effects, there are significant issues that need to be addressed at the admissibility stage, including challenges related to the traditional notions of victim status and extraterritorial jurisdiction, as I will come to in a moment. Second, at the merits stage, if the Court considers that it can proceed to the merits, there is the issue of the margin of appreciation that the Court traditionally affords to member States in areas of significant economic and social policy which is certainly implicated by any sweeping measures applied for the purpose of addressing a wide-ranging issue such as climate change.

To set the scene for my final part, in which I will attempt a reply to the question I posed at the outset, that is whether it is wise and based on sound considerations of policy, to amend the Convention with a new additional protocol on the right to a clean, healthy and sustainable environment, allow me now to explain further the nature and scope of the challenge facing the Court in cases of this kind.

First, the law has its limits, including a human rights treaty like the Convention. The Court has made clear that as an international treaty the Convention must be interpreted in the light of Article 31 § 1 of the Vienna Convention on the Law of Treaties. The starting point under this fundamental interpretive principle is the ‘good faith’ interpretation of the ‘ordinary meaning’ of the provision in question read in ‘its context’ and ‘in the light of its object and purpose’. The purposive or teleological interpretation of the Convention is thus not limitless, it is constrained by the actual textual formulation of the treaty in question. There comes a point where law ends and politics begin. Attempts to expand the reach of the Convention, as it currently stands, to include the protection of human rights harms due to climate change therefore pose a great challenge, not only methodologically, but also as a matter of legitimacy of international law as a normative system of binding rules.

Second, any meaningful measure to address climate change requires the imposition of positive obligations on States. The legal claims in these cases are in principle not framed in terms of States’ interfering with Convention rights, in other words their negative obligations. However, the Convention is mainly couched terms of this negative formulation as inhibiting the State from actively infringing rights, not in terms of positive obligations, which is a jurisprudential construct of the Court. Nevertheless, there is long-standing case-law to the effect that Convention rights sometimes require proactive engagement by States for the effective realisation of rights, hence their positive obligations.

However, and this is crucial, positive obligations have always been formulated in a manner that is sensitive to the articulation of the right which these obligations are meant to preserve and protect. Without taking a firm view, I think it is safe to say that it is questionable whether it is legally tenable to impose positive obligations on States when the scope and content of the right in question is expanded to cover harms or interests that are very far removed from the core of the right in question, such as the right to life and the right to private life and a home. It also would require the Court to give substance to positive obligations without a solid and legitimate normative basis to rely on. After all, that is why the international community is currently attempting to expand the reach of the human right to a healthy environment, both in its anthropocentric (subjective) dimension, but also to introduce a robust protection mechanism for its ecocentric (objective) dimension.

IV.

On this basis, allow me now enter into the last segment of my speech: the way forward for the Council of Europe.

The PACE’s draft protocol grants “everyone” the right to a safe, clean, healthy and sustainable environment. The draft protocol envisages that the right applies to both present and future generations. It also imposes on “every generation” a duty to “prevent any irreparable and irreversible damage to life on Earth” so as to ensure the right for future generations. In addition to this principle of intergenerational equity, the draft protocol recognises other principles of international environmental law such as prevention and precaution. Procedurally, the draft protocol grants “everyone” “the right of access to justice in matters relating to the environment”. It also grants “everyone whose rights as set forth in this Protocol are violated” with an effective remedy.

It is tempting to consider that were this draft protocol to be adopted, it would fill in many of the gaps that exist currently under the Convention in terms of climate change-related actions, as well as to introduce an effective mechanism for protection against environmental degradation and loss of biodiversity. In other words, it would be assumed that a far more straightforward argument could be made for the Court to hold member States to account in environmental cases.

To be frank, I am not sure. I invite caution in this regard, as seems to have been the approach adopted by the Committee of Ministers in its 2022 Recommendation which did not follow up on the PACE’s invitation to the CM to draw up an additional protocol. My arguments in this regard are both substantive and procedural. They are as follows:

Firstly, in point 3.1 of the PACE’s 2021 Recommendation, it is stated that the ‘inclusion of this right in the Convention would establish the clear responsibility of member States to maintain a good state of the environment that is compatible with life in dignity and in good health and the full enjoyment of other fundamental rights; this would also support much more effective protection of a safe, clean, healthy and sustainable environment at national level, including for generations to come”.

These are all lofty and inspiring goals and certainly merit extensive debate at the national and international stages and a moral and political obligation to adopt binding norms and standards. However, I question whether these goals justify the adoption of a new protocol to the European Convention on Human Rights which would open this new right to protracted disputes and adjudicatory resolution in national courts and ultimately within the Strasbourg Court. In other words, we should ask ourselves this: In the light of the need for further standard-setting and normatively binding and detailed rules in the climate change field and also to protect the environment in general, is it realistic that judges should be asked to take the lead by determining for 46 member States what constitutes a ‘good state for the environment that is compatible with life in dignity and in good health’, as this is worded in the Recommendation. The concepts underpinning the right in question under Article 5 of the draft protocol, referring as they do to a ‘safe, clean, healthy and sustainable environment’ will moreover invite extremely difficult definitional, scientific and probative challenges when litigated in adversarial proceedings which will certainly require meaningful documentary and evidentiary processes for judges to be capable of reaching any sound conclusions.

Secondly, the adoption of the draft protocol would not, as it currently stands, alter the fact that all admissibility issues, such as jurisdiction under Article 1 and victim status under Article 34, will have to be dealt with in accordance with settled principles.

The question that arises is how the victim status requirement will be meaningfully developed within the context of the right to a clean, healthy and sustainable environment? Article 2 of the draft Protocol seems to introduce a minimum severity threshold which may have relevance here, although its possible interaction with the victim status requirement is not fully clear. Article 2 states that “Every generation has a duty to protect the environment and biodiversity and to prevent any irreparable and irreversible damage to life on Earth”. It has been argued that the threshold of what damage qualifies as irreparable and irreversible should be evaluated on the balance of probabilities, given the technical complexities of the subject matter, which would however require a significant reformulation of the case-law which traditionally sets a higher standard of proof for the establishment of facts.

Separately, the question of extraterritorial jurisdiction arises inevitably in the context of the right to a healthy environment. Article 1 of the Convention provides that Member States shall secure Convention rights to “everyone within their jurisdiction”. This means that a member States jurisdiction is only exceptionally recognised when the violations alleged occur outside its territory. Currently, the relevant test for extraterritorial jurisdiction is whether the State exerts “effective control” over the affected area outside of its territory. However, this has mainly been applied in the context of military conflict and extraterritorial occupation. Of course, environmental damage and climate change completely different. A member State does not need to have any sort of control over territories of third states to emit greenhouse gases into the environment, affecting a third state’s air quality and climate.

It is not clear to me how the inherent cross-border and transversal nature of the right to a healthy environment can be reconciled meaningfully with the current formulation of Article 1 of the Convention and the Court’s case-law. Again, any imposition of positive obligations in this field in one member States will, by its very nature, have to take account of pan-European policy issues as any effective solutions cannot be limited geographically to the respondent State in a given case.

So, to conclude, if not an additional protocol to the Convention, then what? I agree with those that say that the Council of Europe cannot be agnostic in this area. It should continue to take the lead. The PACE’s Resolution and Recommendation of 2021 and the CM’s Recommendation to member States of 2022 are steps in the right direction, but an additional protocol to the Convention is, I tend to think, not the right solution.

Before a right to a healthy environment is given normative status in a human rights treaty, granting ‘everyone’ direct access to an adjudicative remedy for violations of this right, robust standard-setting at national and international level ideally needs to take place for the effective realisation of that right. The CM’s Recommendation of 2022, inviting member States to become more active in this area, is therefore a step in the right direction, but this does not exclude further proactive engagement at the level of the Council of Europe.

The upcoming Reykjavik Summit should be used as an opportunity for the organisation to commit to starting work on the Council of Europe Convention on the right to a clean, healthy and sustainable environment which would constitute a holistic and comprehensive set of standards. However, importantly, this would be a standard-setting and framework Convention, not a human rights treaty with individual access to an adjudicatory resolution mechanism. In short, in my view, the right to a healthy environment will not be meaningfully imposed top-down by judges or human rights campaigners but can only realistically become a reality through robust, good-faith democratic, as well as multilateral engagement with all relevant stakeholders. Again, all politicians and stakeholders have a strong moral and political justification to act and act with all deliberate speed. There, the Council of Europe should remain a leader, paving the way forward.

Thank you very much.